The Law Commission final surrogacy law reform report:
Key takeaways and our response
Following an extensive project which started in 2018, the Law Commissions of England and Wales and Scotland have today published their final recommendations for UK surrogacy law reform. Their proposals will – they say – modernise UK law, better support those entering into surrogacy arrangements, and ensure UK surrogacy continues to operate on an altruistic rather than a commercial basis.
What are the Law Commission’s final recommendations?
A new pathway for UK surrogacy
There will be a new ‘pathway’ to parenthood for those going through UK surrogacy arrangements via non-profit surrogacy organisations (with those organisations licensed and regulated by the HFEA as Regulated Surrogacy Organisations).
Intended parents and surrogates who have followed the required pre-conception steps (which include screening, counselling, independent legal advice and a written agreement) and had their arrangement signed off by a Regulated Surrogacy Organisation will be able to record the intended parents on the child’s birth certificate immediately without the need for a post-birth court process.
However, the surrogate will retain her right to change her mind and withdraw consent to the intended parents being the legal parents throughout the pregnancy and up to six weeks after the birth, for any reason. If she changes her mind during the pregnancy she will be the legal mother at birth; if she changes her mind in the six weeks after the birth then the intended parents will be the legal parents at birth, but she will be able to make a court application to become the legal mother.
There will be a stricter new regime on payments to surrogates, with expenses reimbursed against a specific list of permitted categories rather than paid as a general allowance. Compensation, general living expenses and all other payments will be strictly prohibited, with criminal offences for the intended parents if they do not give a statutory declaration after the birth confirming they have only paid what is permitted by law.
International surrogacy arrangements
No significant changes to the current law are recommended for those undergoing international surrogacy. Parents of children born outside the UK will still have to apply for a parental order after the birth, with the current law remaining largely unchanged. There are some limited recommendations for improving the speed of existing immigration processes and for recognising the intended father as the legal father for British nationality purposes regardless of whether the surrogate is married, but no substantive reform otherwise.
Disputed surrogacy arrangements
If a surrogate does not consent to the intended parents being the legal parents, there will be more flexibility for the family court to reassign parenthood via a parental order, with the power to dispense with the surrogate’s consent if the child is living with the intended parents and a parental order is in their best interests.
There will be a new Surrogacy Register, through which the HFEA will hold information for surrogate-born people, including the identity of their surrogate and intended parents, whether donated gametes were used and the address of the fertility clinic involved.
Improved employment rights
There will be better employment rights for intended parents, including a right to Maternity Allowance for the self-employed, and being able to start leave from 14 days prior to the child’s due date rather than from birth.
What we think about the proposals
The Law Commission’s recommendations are a positive step forward for those lucky enough to be going through UK surrogacy with the help of a UK surrogacy organisation. They will enable the intended parents to be recognised as legal parents immediately from birth where everyone agrees, something that we have actively campaigned for over many years. The safeguards being introduced as part of the new pathway are also welcome, reflecting the belt and braces approach to safety taken by Brilliant Beginnings and NGA Law for the past decade. Counselling, legal advice and a written agreement are all important ethical components of ensuring that everyone involved is protected, informed and gives full consent.
However, the Law Commission’s proposals are not the sea-change reform we had hoped for and we are disappointed that only a minority of those who need surrogacy will benefit from the new law.
At least two thirds of the UK families we support currently choose to go overseas for surrogacy rather than to stay in the UK. They typically feel they have no choice given the chronic shortage of UK surrogates, the lack of certainty around how long it may take to find a UK surrogate willing to help them, and the lack of legal security involved in entering into an ‘unenforceable’ UK surrogacy arrangement.
The Law Commission’s proposals will do nothing to help parents through international surrogacy or their children, retaining the clumsy and outdated parental order mechanism for reassigning parenthood which can take up to a year after the birth and which in the meantime leaves children vulnerable and legally unprotected.
Neither will the Law Commission’s proposals address the bigger picture, which is what is driving so many parents overseas.
The fact that UK surrogates will retain a legal right to withdraw consent to the intended parents being the legal parents of their children until six weeks after the birth will do nothing to encourage intended parents to choose UK surrogacy over surrogacy in places like the USA where agreements are legally recognised and enforceable.
Even worse, the new requirement for intended parents to account for every penny they pay their surrogate against a narrow permitted expenses list, and potential criminal offences for those who pay more, is a significant step backwards. Currently most UK surrogacy teams agree a reasonable figure at the outset of their surrogacy journey (typically £12,000 to £25,000), which broadly reflects expenses but often also includes an element of benefit or compensation, with no criminal offences and the court having an express power to authorise any payments retrospectively. Most pay those expenses in monthly stages, helping remove the constant focus on the awkward topic of money during the surrogacy journey. This well-established approach will no longer be permissible, replaced with a restrictive approach to reimbursing specific expenses as they arise. We are deeply concerned that this will worsen the existing shortage of UK surrogates, giving even more parents no choice but to go overseas.
The Law Commission’s report has been five years in the making and follows an extensive public consultation. Since 2008, there have been dozens of High Court decisions which have criticised the current law and the difficulties it creates, particularly for children born through international surrogacy. The former President of the Family Division has openly called for compensation to be permitted to UK surrogates.
It is hugely disappointing that the Law Commission has not listened to those grappling with the real challenges of modern surrogacy on the ground and instead recommended reform which will only benefit a small section of surrogacy families. A once-in-a-generation chance to make real change is being missed.
What are the next steps?
The government will now need to decide whether to adopt the Law Commission’s recommendations, with the Responsible Minister expected to give the Law Commission an interim response within the next six months and a full response within the next year. From there, the government will decide whether and when to devote Parliamentary time to changing the law.
If things move forward, the Law Commissions have produced a draft Bill with their report, which could be sent to Parliament in its current form or in an amended form. Parliament may then make further changes to any proposals, as part of the normal process of considering new law which involves the House of Commons and the House of Lords. This means that the current proposals are not yet set in stone, and could be changed.
After that there is also likely to be a period of time for implementing any law that is passed and working out the practical detail (including the detail of any new regulatory framework such as an HFEA surrogacy Code of Practice and licensing system for Regulated Surrogacy Organisations). This will in practice mean that any new law will not take effect for a considerable period of time.
NGA Law and Brilliant Beginnings have been intimately involved in campaigning for surrogacy law reform since 2007, and remain devoted to advocating for surrogates and all UK families created through surrogacy (both those following surrogacy journeys in the UK and those conceiving through international surrogacy). We will be on hand as things move forward and will continue guide you through what is happening as it happens.
Find out more about how you can get involved.
Read the Law Commission’s full report, summary report and draft Bill.
Surrogacy Law Reform
Learn more about the long road to surrogacy law reform, why it is is necessary, and what the current surrogacy law says.